Safety Engineering Expert Witness' testimony on non-scientific issues stands rejected after the Court upheld the applicability of Daubert Analysis

Safety Engineering Expert Witness’ testimony on non-scientific issues stands rejected after the Court upheld the applicability of Daubert Analysis

Sheila A. Skaggs filed a lawsuit against Ferrellgas, the supplier of liquid propane and propane dispensing equipment, after sustaining injuries from an explosion at Faurecia Gladstone, a facility owned by Faurecia USA Holdings, Inc. The incident took place when an LP tank exploded while Skaggs was working at Faurecia. The equipment involved, including the LP tank and its connecting hose, was installed, maintained, inspected, and repaired by Ferrellgas. The explosion occurred as a Faurecia employee drove away from the fueling station with the hose still connected, resulting in it tearing apart and causing an LP gas leak. Skaggs alleged that Ferrellgas was negligent in their installation, maintenance, inspection, and repair of the equipment.

Skaggs presented a report authored by Frank Burg, a Certified Safety Professional and Registered Professional Safety Engineer, along with his curriculum vitae. Burg aimed to offer expert opinions asserting that Ferrellgas’s propane dispenser was defective due to lacking a lock-out procedure and a retractable hose. Additionally, Burg suggested that Ferrellgas fell under Occupational Safety and Health Administration (OSHA) regulations based on the multi-employer doctrine. Drawing from his 45 years of experience in safety and health, Burg’s opinions were supported by his review of investigation photographs, emails, and documents. He also provided insights into general OSHA and National Fire Protection Association (NFPA) standards.

Defendant/Third Party Plaintiff Ferrellgas, Inc’s (“Ferrellgas”) filed a motion to exclude Frank Burg’s expert opinion testimony.

Safety Engineering Expert Witness

Frank Burg is an expert in various domains, particularly general industry and construction safety and health, alongside expertise in ergonomics. His investigative experience spans injuries related to cranes, rigging, road construction accidents, falls, railroad incidents, electrical mishaps, machine guarding, gas and oil well incidents, hazardous chemicals, and cases involving human factors engineering and FELA (Federal Employees Liability Act). Beyond investigations, Burg conducts training seminars, OSHA-style audits, and offers expert testimony in his field of expertise.

Discussion by the Court

Skaggs contended that Frank Burg’s expert testimony would aid the fact-finder by establishing Ferrellgas’s breach of duty, citing industry safety standards relevant to Ferrellgas encompassing both OSHA and NFPA standards. Ferrellgas moved to exclude Burg’s specific opinions regarding the necessity of a lock-out procedure and a retractable hose in their dispenser, as well as the assertion that Ferrellgas fell under OSHA regulations due to the multi-employer doctrine. Ferrellgas argued that Burg’s testimony lacked reliability per Rule 702 and Daubert standards, citing the absence of articulated methods for forming opinions and the inapplicability of safety standards to the case’s facts.

During oral arguments, Ferrellgas highlighted that Burg hadn’t taken scene photos, conducted tests, made calculations or diagrams, performed interviews, reviewed articles, visited other plants or propane companies, or examined forklift refueling practices elsewhere. These factors were raised to challenge the credibility and relevance of Burg’s opinions in the case.

Ferrellgas contended that Frank Burg’s attempt to apply OSHA regulations lacked methodological foundation, asserting that as the installer of propane dispensing equipment, they were not subjected to OSHA regulations for Faurecia’s employees. Additionally, Ferrellgas argued that Burg’s reference to the multiemployer doctrine didn’t withstand legal scrutiny and was inappropriate as a subject for opinion testimony. The company further maintained that Burg’s efforts to interpret OSHA regulations were flawed since matters of law, including Burg’s opinion on Ferrellgas falling within the multiemployer doctrine and being under OSHA regulation, were not suitable topics for expert testimony in the case.

Skaggs acknowledged that Frank Burg’s opinion lacked scientific methodology but argued that its non-scientific nature exempted it from requiring a Daubert analysis. Skaggs asserted that Burg, as a Certified Safety Professional, fulfilled the criteria of Federal Rule of Evidence 702 by aiding the fact-finder in determining Ferrellgas’s breach of duty, presenting evidence encompassing both OSHA and NFPA standards.

Skaggs further argued that Burg wasn’t obligated to visit the scene or address other criticisms to provide an opinion. The extensive review of documents and deposition testimony formed a substantial basis for Burg’s opinions according to Skaggs. Skaggs concluded by asserting that Burg’s testimony met admissibility requirements under Fed. R. Evid. 702, deeming it reliable and helpful for the fact-finder in crucial matters of the case. Any concerns about its reliability, Skaggs claimed, should pertain to the evidence’s weight, a determination within the jury’s purview.

The Court acknowledged Frank Burg’s expertise, affirming his qualifications in the field. However, the Court disagreed with Skaggs’ assertion that a Daubert analysis was unnecessary. It stated that all experts, regardless of their expertise based on experience, are subject to the relevance and reliability assessments mandated by Daubert.

In Burg’s report, he presented opinions based on his extensive experience but omitted explanations regarding the analysis behind these opinions. The Court emphasized that despite the non-scientific nature of the issues, all experts are required to elucidate their methodology for reaching opinions, enabling the court to evaluate relevance and reliability. Since Burg failed to provide this essential methodology, the Court determined his experience alone couldn’t establish the required reliability under Rule 702, citing Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395 F.3d 416, 419 (7th Cir. 2005). Notably, Rule 702(d) was amended to stress that each expert opinion must stem from a dependable application of the expert’s basis and methodology. Even for non-scientific matters, experts are obligated to use reliable methods and principles, which Burg failed to do in this instance.

Burg’s qualifications suggest expertise in the scientific method and accident investigations, yet he failed to apply any methodology in forming opinions regarding the necessity of a lock-out procedure or a retractable hose. He admitted to not conducting an investigation into the accident but rather relied on others’ investigations. Additionally, he didn’t perform any inspections and provided no explanation or analysis supporting his conclusions. Rule 702 necessitates that an expert’s opinion goes beyond a mere “bottom line” and demands a clear explanation of the methodologies and principles behind their opinion. Burg’s failure to elucidate his methodologies led to his expert opinions on this matter being deemed inadmissible under Rule 702’s admissibility requirements.

Ferrellgas moved to exclude Burg’s opinions stating that Ferrellgas, as a “creating employer,” for creating the hazard by not having safeguards on their equipment and the application of the “multiemployer worksite doctrine” subject them to OSHA regulations. They argued that Burg’s attempt to apply OSHA regulations lacked methodological support as Ferrellgas, being the installer of propane equipment, wasn’t under OSHA regulations for Faurecia’s employees. Ferrellgas contended that Burg’s reference to the “multiemployer doctrine” was legally unsound and unsuitable for opinion testimony.

Burg’s opinions lacked analytical support, failing to explain how he reached his conclusions. His assertion that Ferrellgas qualifies as a “creating employer” and the application of the “multiemployer” doctrine constituted improper opinions since experts aren’t permitted to opine on legal conclusions. The Court deemed this opinion testimony unhelpful to the fact-finder, stating that legal conclusions could lead to unfair prejudice, confusion, or misguidance of the jury. As a result, the Court decided to exclude Burg’s expert testimony concerning Ferrellgas’s purported violations of OSHA standards and the multiemployer doctrine.


Ferrellgas’ motion to exclude Frank Burg’s expert opinion testimony was granted by the Court.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

The case highlights several critical aspects regarding expert witness testimony. One crucial factor is the necessity for a clear and well-defined methodology behind an expert’s conclusions. Whether grounded in experience or scientific analysis, the Court emphasizes that a detailed methodology is vital to establish the reliability and relevance of expert opinions, aligning with standards set by Daubert and Rule 702. Experts are obligated to provide explanations beyond mere conclusions, offering insights into their methodologies to aid the Court in evaluating the weight and credibility of their testimony.

Moreover, experts are cautioned against delving into legal conclusions. The focus of their opinions should remain within their area of expertise, steering clear of offering legal assessments, as this can confuse or unfairly influence the jury. The case underlines the importance of separating expert analysis from legal interpretations, preserving the clarity and objectivity of expert testimony.

In this context, the admissibility of expert testimony hinges on meeting stringent criteria: reliability, relevance, and the articulate presentation of methodologies used in forming opinions. Experts are expected to uphold these standards, ensuring their insights provide valuable, factual analysis rather than legal conjecture.